Holding

The holder of an impartible estate, even where the rule of primogeniture applies, has the unrestricted power to alienate the property by gift or by will, and any alleged custom of inalienability must be positively proved.

Summary

The former ruler of Mohanpur State gifted and bequeathed certain lands to his younger son, but the eldest son, who succeeded as ruler, challenged the validity of those dispositions, arguing that the rule of primogeniture applicable to the Raj estate barred any alienation. The Civil Judge declared the deed of gift and will illegal; the Gujarat High Court reversed that decision, holding that the holder of an impartible estate could alienate the property. On special leave, the Supreme Court examined the nature of impartible estates, citing the Privy Council and earlier Indian cases, and held that such estates, though subject to primogeniture, are clothed with the incidents of self‑acquired property, giving the holder an unrestricted power to alienate by gift or by will, even if it defeats the right of survivorship. The Court rejected the appellant’s claim of a family custom prohibiting alienation, finding no positive evidence of such a custom. Consequently, the High Court’s judgment was affirmed and the appeal dismissed.

Issues considered

The holder of an impartible estate to which the rule of primogeniture applies may alienate the property by deed of gift or by will.
Whether a family custom of inalienability of the Raj estate can restrict the holder’s power of alienation.

Legislation cited

Hindu Succession Act, 1956s. 30, s. 6

Subjects

Hindu lawimpartible estaterule of primogeniturealienationgiftwillfamily customsurvivorshipRaj estatespecial leave

Judgment

THAKORE SHRI VINAYASINHJI (DEAD) BY LRS.
v.
KUMAR SHRI NATWARSINHJJ & ORS.

NOVEMBER 18, 1987

B [MURARI MOHON DUTT AND M.H. KANIA, JJ.]

Hindu Law-Whether the holder of an impartible estate to which "r
the rule of primogeniture applies as an essential characteristic of such an
estate, can alienate the properties comprised in the estate, by a deed of >-
gift or a will.
C The father of the appellant Thakore Shri Vinayasinhji, the Ruler,.,.,..<.._..
of the former Mohanpur State, gifted certain properties to his youngest ·
son, the respondent No. 1, by a deed of gift dated May 14, 1951, and also
bequeathed certain properties to the respondent No. 1 and his mother
by his will dated May 22, 1951. The father died in 1955, whereupon the
appellant became the Ruler. He instituted a suit, challenging the valid·
D ity of the said deed of gift and the will on the ground that as the rule of
primogeniture applied to the Raj Estate, he being the eldest son
succeeded to the 'Gadi' and that his father, the former Ruler, had no
power of alienation either by gift or by will and accordingly, the disposi·
tion made by him by the above-said deed of gift and the will in favour of \ ,
his younger brother, the respondent No. 1 was illegal and invalid. r
E
The Civil Judge decreed the suit in part, declaring that the deed of
gift and the will were illegal, and directing the respondent No. 1 to hand
over to the appellant the possession of the properties mentioned in the
deed of gift. The Civil Judge passed a decree for mesne profits, but
refused the prayer of the appellant for an injunction on the ground that he
F had failed to prove his possession of the properties mentioned in the
~- ~
Being aggrieved by the judgment and decree of the Civil Judge,
the respondents preferred an appeal to the High Court. The High Court
held that the former Ruler had the power of alienation and, accord-
G ingly, the deed of gift and the will impugned were legal and valid. The
judgment and decree of the Civil Judge were set aside. Thereupon, this
appeal was filed before this Court by special leave against the decision
of the High Court. During the pendency of the appeal, the appellant f-
Thakore Harnathsinhji Vinayasinhji died, leaving behind the present
appellants, who were already on record as his heirs and legal
H representatives.
1110
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI 1111

Dismissing the appeal, the Court, A

HELD: It was not disputed that the Raj Estate of which the
deceased appellant was thl Ruler is impartible and that the rule of
primogeniture-<1ne of the essential characteristics of an impartible
estate-is also applicable. The question involved for the consideration B
of the Court was whether the holder of an impartihle estate to which the
rule of primogeniture applies as an essential characteristic of such an
estate, could alienate the properties comprised in the estate by a deed of
gift or will. [lllSD-E]

The law has been clearly and succinctly stated in the illuminating
judgment of Sir Dinshah Mulla in Shiba Prasad Singh v. Rani Prayag c
Kumari Debi AIR 1932 P(; 216. There is no restraint on the power of
alienation of the holder of the impartihle estate, as any restraint on the
power would be incompatible with the custom of impartibility. The
impartible estate, though ancestral, is clothed with the incidence of
self-acquired and separate property except as regards the right of D
survivorship which is not inconsistent with the custom of impartibility.
The right of survivorship has been held to be a birthright and is not a
mere spes successionis similar to that of a reversioner succeeding on the
death of a Hindu widow to her husband's estate. [ll16G-H; ll17A]

In Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51, the right of E
alienation of the holder has been recognised and in Shiba Prasad's case
(Supra) such right of the holder is reiterated. Impartibility is essentially
a creature of custom which supersedes the general law. It is true that
the impartible estate retains the character of joint family property only
to the extent that.there is a right of survivorship by birth to the junior
members of the family, but, as the Privy Council has observed in Shiba F
Prasad's case (supra) that in all other respects it is clothed with the
incidents of self-acquired and separate property, it follows that the
holder of the impartible estate has the unlimited right of alienation not
only by transfer inter vivos but also by will. When the holder has the
power to dispose of the estate during his life-time, it would be quite
illogical to hold that he would not have the power of disposition by a G
will. The power of alientation has been recognised without any reserva-
tion inasmuch as such power is not incompatible with the impartibility
of the estate. The rights available to the member of the Hindu joint
family under the Mitakshara law have been curtailed to a great extent,
as most of the said rights would be inconsistent with the nature and
character of the estate. [1117E-G; 1118D-E] H
1112 SUPREME COURT REPORTS (1988) 1 S.C.R.

A The case of Sri Raja Rao v. Venkata Kumari, 26 IA 83 is an
authority for the proposition that a holder of an impartible estate can-
not only dispose of the estate by transfers inter vivas but also by a will
and that when such a disposition is made by a will, it defeats the right of
survivorship. It may be that the holder of an impartible estate can
defeat the right of survivorship by leaving a will and such right cannot
B be said to have been founded on any logical basis, but it bas to be borne
in mind that the whole concept of impartibility is a creature of custom l
inclnding the right of alienation of the holder of such estate. In matters
of custom, it is hardly possible to justify every incident on some logical
basis. [1120B-C]

There can be no doubt that an impartible estate is not a
/j
C separate or self-acquired property of the holder thereof, but it bas
been observed by Sri Dinshal Mulla in Shiba Prasad's case (supra)
that it is clothed with the incidents of self-acquired and separate
property. One of such incidents is that the owner is entitled to dis-
pose of the same in whatever manner he likes-either by a transfer
D during his life-time or by a will. (11200-E)

The right of a coparcener to take by survivorship can be-defeated
under certain circumstances as enumerated in Mulla's Hindu Law.
When under certain circumstances the right of a coparcener to take
by survivorship can be defeated, no exception can be taken
E if the right of survivorship of junior members of an impartible
estate to succeed to it is defeated by the holder thereof by disposi-
tion by a will. [1121E-F)

In view of the decisions of the Privy Council and this Court, it
must be held that the holder of an impartible estate has the power of
F alienation not only by transfer inter vivos, but also by a will even though
the disposition by will may altogether defeat the right of survivorship of
the junior members of the family. {1122B)

The appellants contended alternatively that by virtue of a family
custom, the holder of the impartible estate, as in this case, had no
G power of alienation either by a transfer inter vivos or by a will, and in
support of this contention, drew the attention of the Court to some
correspondence between the original appellant since deceased and the t
political agent of the Mobanpur State. The appellants placed much
reliance upon the above documentary evidence in proof of their conten-
tion that there was a family custom prohibiting alienation by the Ruler
H of the State. [1122C-D]
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI 1113

The correspondence related only to the question of granting
A
jiwai (maintenance) to the younger son of the former Ruler. It
appeared from the correspondence that the entire attempt of the
appellant was against the quantum of maintenance proposed to he
granted hy the Ruler to his younger son. It was not the appellant's
contention that in view of a family custom, the Ruler had no right
of alienation, but his case was that in view of the annual revenue B
of the State the quantum of the jiwai would be out of proportion.
It was only on this ground that he protested against the proposed
jiwai. The correspondence referred to did not prove any custom
of inalienability of the impartible estate. [1123B·D]
'
~·. The appellants contended that as there was no instance of C
alienation till before the impugned deed of gift and will, it should
be presumed that there was a family custom of inalienability of
the estate. More or less a similar contention made before the Privy
Council in Protap Chander Deo v. laf(dish Chandra Deo, 54 IA
289 was overruled by the Privy Council. There must be some positive
evidence of such a custom. The correspondence relied upon as the D
evidence of the alleged family custom of inalienability was far from
being such evidence, the only question that formed the subject-matter
of all this correspondence related to the propriety of the question of
jiwai. The appellants had failed to prove that there was any family
custom of inalienability of the estate. [1123D·G)
E
The judgment and decree of the High Court were aflinned. [1123GI

Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51; Shiba Prasad Singh
v. Rani Prayag Kumari Debi, AIR 1932 PC 216; Collector of Gorakh-
pur v. Ram Sunder Mal, AIR 1934 PC 157; Chinnathayi v. Kulasekara
Pandiya Naicker, (1952) SCR 1952 241; Shri Kaja Rao v. Venkata F
Kumari, 26 IA 83; Seth Lakshmi Chand v, Mt. Anandi and Others, AIR
1926 PC 54; Lakshman Dada Naik v. Ramachandra Dada Naik, 7 IA
181; M.N. Arya Murthi v. M.N. Subbaraya Setty, AIR 1972 SC 1279;
Baijnath Prasad Singh v. Tej Bali Singh, AIR 1921 PC 62; Protap
Chandra Dao v. Jagdish Chandra Deo, 54 IA 289; Mirza Raja Shri
Pashavathi Viziaram Gajapathi Raj Manne Sultan Bahadur v. Shri G
Pushavathi Visweswar Gajapathi Raj, (1964) 2 SCR 403 and Bhaiya
Ramanuj Pratap Deo v. Latu Maheshanuj Pratap Deo, (1982) 1 SCR
417, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2477
~wn. H
1114 SUPREME COURT REPORTS [ 1988] I S.C.R.

A From the Judgment and I)ecree dated 2.12.1969 of the Gujarat
High Court in F.A. No. 89 of 1961.

S.K. Dholakia, R.C. Bhatia and P.C. Kapur for the Appellants.

B.K. Mehta, H.S. Parihar and N.D. Bhatti for the Respondents.
B
The Judgment of the Court was delivered by

DUTT, J. This appeal by special leave is at the instance of the
plaintiff-appellant, since deceased, and is directed against the judg-
ment and d~cree.o~ ~he Gujarat High Court reversing those o~ the Civil /-~
Judge, Semor D1vmon, Htmatnagar, whereby the learned CIVll Judge · ·
C decreed the suit instituted by the appellant.
The late Thakore Sartansinhji, the father of the appellant, was
the Ruler of the former Mohanpur State situated in the district of
Sabarkantha, Gujarat. After independence, the said Mohanpur State
D merged in the then State of Bombay·(now the State of Maharasbtra).
The former Ruler, the father of the appellant, by a deed of gift dated
May 14, 1951 gifted certain properties to his youngest son, the respon-
dent No. 1 herein. By his will dated May 22, 1951, the former Ruler
also bequeathed certain properties to the respondent No. 1 and his
mother. The father of the appellant died on December 9, ~955 and on
E his death the appellant became the Ruler. On May 10, 1956, the suit
out of which this appeal arises, was instituted by the appellant chal-
lenging the validity of the said deed of gift and the will. In the suit, the
case of the appellant was that as the rule of primogeniture applied to
the Raj Estate, he being the eldest son succeeded to the 'Gadi'. It was
contended that the former Ruler, that is, the father of the appellant,
F had no power of alienation either by gift or by will and, accordingly,
the disposition made by him by the said deed of gift and the will in
favour of his younger brother, the respondent No. 1, was illegal and
invalid.

The respondents including the younger brother of the appellant,
G contested 'the suit, inter alia, denying that the former Ruler had no
power of alienation as contended by the appellant. It was averred that
the deed of gift and the will were perfectly legal and valid. The learned
Civil Judge decreed the suit in part declaring that the deed of gift and
the will were-Illegal and directed the respondent No. 1 to hand-over to
the appellant the possession of the properties which were all
H agricultural lands, as mentioned in the deed of gift. The learned Civil
1HAKORE VINAYASINHJI v. KUMAR NATWARSJNHJI [DUTI, J.] 1115

~ Judge passed a decree for mesne profit, but refused the prayer of the A
appellant for an injunction on the ground that the appellant had failed
to prove his possession of the properties mentioned in the plaint.

Being aggrieved by the judgment and decree of the learned Civil
Judge, the respondents preferred an appeal to the High Court. The
High Court, after considering the facts and circumstances of the case B
r and the evidence adduced by the parties, held that the former Ruler
had the power of alienation and, accordingly, the deed of gift and the
-< will impugned in the suit, were legal and valid. The appeal was allowed
and the judgment and decree of the learned Civil Judge were set aside.
Hence this appeal by special leave.
--~'-
During the pendency of the appeal in this Court, the appellant
c
Thakore Harnathsinhji Vinayasinhji died on June 27, 1985 leaving
behind him the present appellants, who were already on record, as his
heirs and legal representatives.

It is not disputed that the Raj Estate, of which the deceased D
appellant was the Ruler, is impartible and that the rule of primogeni-
ture, which is one of the essential characteristics of an impartible
estate, is also applicable. The question that is involved in this appeal
"1 for our consideration is whether the holder of an impartible estate, to
which the rule of primogeniture applies as an essential characteristic of
such an estate, can alienate the properties comprised in the estate by a E
deed of gift or will. The legal position that prevailed up to 1888 was

-- that a holder of an impartible estate could not transfer or mortgage
such estate beyond his own life-time so as to bind the coparceners,
except for purposes beneficial to the family and not to himself alone.
In 1888, for the first time, in Rani Sartaj Kuari v. Deoraj Kuari, 15 IA
/""- 51 the Privy Council recognised the power of alientation by the holder F
of an impartible estate and held that such power of alienation could
be excluded by custom or by the nature of the tenure. In that case, the
Privy Council also took the view that in an impartible Raj Estate, the
son is not a co-sharer with his father. This view, however, was not
accepted by the later Privy Council decisions and it is now well settled
that co-ownership of the joint family exists in impartible estate. G

At this stage, it will be profitable for us to refer to the illuminat-
ing judgment of Sir Dinshah Mulla in the case of Shiba Prasad Singh v.
Rani Prayag Kumari Debi, AIR 1932 PC 216. Sir Dinshah Mulla while
delivering the judgment of the Judicial Committee of the Privy
Council observed as follows:- H
1116 SUPREME COURT REPORTS I 19881 I S.C.R.
"Impartibility is essentially a creature of custom. In the ""
A case of ordinary joint family property, the members of the
family have; ( 1) the right of partition; (2) the right to rest-
rain alienations by the head of the family except for neces-
sity; (3) the right of maintenance; and (4) the right of
survivorship.· The first of these rights cannot exist in the
B case of an impartible estate, though ancestral, from the
very nature of the estate. The second is incompatible with r
the custom of impartibility as laid down in Satraj Kuari's
case lSIASlandRamaKrishnav. VenkataKumara, 26IA >o-
83 (PC), and so also the third as held in Gangadhara v.
Rajah of Pittapur, 45 IA 148. To this extent the general law
of the Mitakshara has been superseded by custom, and the-~- _
c impartible estate, though ancestral, is clothed with the inci-
dents of self-aequired and separate property. But the right
of survivorship is not inconsistent with the custom of
impartibility. This right therefore still remains, and this is
what was held in Baijnath's case, 48 IA 195. To this extent
D the estate still retains its character of joint family property,
and its devolution is governed by the general Mitakshara
law applicable to such property. Though the other rights
which a co-parcener acquires by birth in joint family p"rop-
erty no longer exist, the birthright of the senior member to \.--'
take by survivorship still remains. Nor is this right a mere
E spes successionis similar to that of a reversioner suceeding
on the death of a Hindu widow to her husband's estate. It is
a right which is capable of being renounced and surren- ..._.
dered. Such being their Lordships' view, it follows that in
order to establish that a family governed by the Mitakshara
in which there is an ancestral impartible estate has ceased
F to b~ joint, it is necessary t? p~ove an intention, expr~ss or . "'
1mphed, on the part of the iumor members of the family to'""
renounce their right of succession to the estate. It is not
sufficient to show a separation merely in food and
worship."

G The law has been clearly and succinctly stated in the passage
extracted above. There is, therefore, no restraint on the power of
alienation of the holder of the impartible estate, as any restraint on t-
the power would be incompatible with the custom of impartibility. The
impartible estate, though ancestral, is clothed with the incidents of
self-acquired and separate property, except as regards the right of
-• survivorship which is not inconsistent with the custom of impartibility.
TIIAKORE VINAYASINHJI v. KUMAR NATWARSINHJI (DU'IT, J.] 1117

? The right of survivorship has been held to be a birthright and is not a A
mere spes successionis similar to that of a reversioner. succeeding on
the death of a Hindu widow to ·her husband's estate.

Mr. Dholakia, learned Counsel appearing on behalf of the appel-
lants, does not dispute that the holder of an impartible estate has the
power of alienation by transfer inter vivos. It is, however, submitted B
T by him that he has no such power to make a disposition by a will which
would affect the right of survivorship by birth of the junior members of
.c the family, which is the only right that remains and, as recognised by
the Privy Council in Shiba Prasad's case (supra), is not opposed to the
custom of impartibility. It is submitted by the learned Counsel that
~ "-- -disposition by will is incompatible with the right of survivorship by
birth. The right of the junior branch to succeed by survivorship to the c
Raj on the extinction of their senior branch, has also been definitely
and emphatically reaffirmed by the Privy Council in Collector of
Gorakhpur v. Ram Sundar Mal, AIR 1934 PC 157. Counsel submits
that the right of alienation by will and the right of survivorship by birth
cannot co-exist and, as it is now a settled law that in an impartible Raj D
Estate, the right of survivorship of birth of the junior members to
succeed to the estate still remains, it will be beyond the power of the
holder of the estate to defeat such right by a will.

Attractive though the contention is, we regret we are unable to
accept the same. It has been already noticed that in Sartaj Kuari's case E
(supra) the right of alienation of the holder has been recognised and in
Shiba Prasad's case (supra) such right of the holder is reiterated. Im-
partibility is essentially a creature of custom which supersedes the
general law. It is true that the impartible estate retains the character of
joint family property only to the extent that there is a right of survivor-
ship by birth to the junior members of the family but, as the Privy F
f'*-· Council has observed in Shiba Prasad's case (supra) that in all other
respects it is clothed with the incidents of self-acquired and separate
property, so it follows that the holder of the impartible estate has the
unlimited right of alienation not only by transfer inter vivos, but also
by will. When the holder has the power to dispose of the estate during
his life-time, it would be quite illogical to hold that he would not have G
the power of disposition by a will.

It is, however, submitted that no assumption should be made of
the power of disposition by will from the existence of th~ power of_ the
holder to alienate during his life-time. In support of this content10n,
the learned Counsel for the appellants has placed reliance upon a H
1118 SUPREME COURT REPORTS [1988) 1 S.C.R.

A decision of this Court in Chinnathayi v. Kulasekara Pandiya Naicker, \
[1952] SCR 241 where it has been observed by Mahajan, J. in deliver-
ing the judgment of the Court, that in the case of an impartible estate
the power1to divide it amongst the members does not exist, though the
power in the holder to alienate it is there, and from the existence of
one power the other cannot be deduced as it is destructive of the very
B nature and character of the estate and makes it partible property cap-
able of partition. We do not think that the said observation bears any r
analogy to the contention made on behalf of the appellants. In that
case, this Court was concerned with the question whether the holder of
an impartible estate could divide the estate amongst the members. In
laying down that there is no such power of division, this Court has
C pointed out that such a power would be contrary to the nature and.~
character of the estate, that is to say, the impartibility of the estate. Ii{ · ·-
the instant case, the question is whether the holder has power of dis-
position by will. The power of alienation, as already noticed, has been
recognised without any reservation inasmuch as such power is not
incompatible with the impartibility of the estate. The rights which are
D available to the members of the Hindu joint family under the
Mitakshara law have been curtailed to a great extent, as most of the
said rights would be inconsistent with the nature and character of the
estate. Chinnathayi's case (supra) lends no support to the contention
of \he appellants.

E We may now consider a later decision of the Privy Council in Sri
Raja Rao v. Venkata Kumari, 26 IA 83. In that case, the Privy Council
considered the question of extension of the decision in Sartaj Kuari's
case (supra) to a will and it was held "If the Rajah had power to
alienate, he might do it by will and the title by the will would have
priority to the title by succession." As the case before the Privy
F Council related to an impartible Raj Estate, succession to the estate
would be by survivorship. The Privy Council, however, took the view .~
that title by will would have priority to the title by succession. In other
words, it follows that the holder of the Raj Estate can defeat the right
of survivorship by disposing of the estate by a will. The learned
Counsel for the appellants, however, submits that in laying down that
G an impartible Raj Estate is alienable by a will, the Pri''Y Council pro-
ceeded on the basis that there was no right of survivorship by birth. We
are afraid, we are unable to accept this contention. It is true that the
Privy Council in that decision has not referred to the right of survivor-
ship of the junior members of the family, but it should not be assumed
r
that the Privy Council was not aware of the legal position that in an
H impartible Raj Estate the junior members would succeed to it by
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI [DUTI, J.[ 1119

survivorship. Raja Rao's case (supra) is, therefore, an authority for the
A
proposition that a holder of an impartible estate cannot only dispose
of the estate by transfers inter vivas, but also by a will and that when
such a disposition is made by a will, it defeats the right of survivorship.

It is submitted by the learned Counsel for the appellants that in
extending the decision in Sartaj Kuari's case (supra), the Privy Council B
Raja Rao's case (supra) did not give any reason for extending the
power of alienation of the holder of.an impartible estate to alienation
by a will, thereby defeating the right of survivorship by birth, which is
the only right that is available to the junior members of the family. It
may be that no reason has been given by the Privy Council but, at the
same time, there is also no reason why when the holder is entitled to
dispose of the estate during his life-time, he is not so entitled to dis- c
pose of the same by a will.

Our attention has been drawn by the learned Counsel for the
appellants to a decision of the Privy Council in Seth Lakhmi Chand v.
Mt. Anandi and others, AIR 1926 PC 54. In that case, the question that D
arose. was whether a member of a joint Hindu family could make a
disposition by a will or not. The Privy Council relied upon the follow-
ing observation made in its earlier decision in Lakshman Dada Naik v.
Ramchandra Dada Naik, 7 IA 181:-

"Its, the High Court's, reasons for making distinction bet- E
ween a gift and a devise are that the co-parcener's power of
alienation is founded on his right to a partition; that that right
dies with him; and that, the title of his co-sharers by
survivorship vesting in them at the moment of his death,
there remains nothing upon which the Will can operate."
F
It is submitted on behalf of the appellants that the same principle
against alienability by will by a coparcener should also be applied to an
impartible estate, otherwise it will defeat the right of survivorship by
birth which is the only right that is conceded to in favour of the junior
members of the joint Hindu family. The decision in Lakhmi Chand's
case (supra) or in Lakshman Dada's case (supra) does not relate to an G
impartible estate, but to a coparcenary property and, accordingly, the
principle of law that is applicable to a coparcenary property or to the
coparceners is inapplicable to an impartible estate or to the holder
thereof except, as has been noticed earlier, that an impartible estate is
considered to be a joint family property to the extent of the junior
members succeeding to the estate by right of survivorship. Similarly H
1120 SUPREME COURT REPORTS [ 1988] l S.C.R.

the decision of this Court in M.N. Aryamurthi v. M.L. Subbaraya ~-
A Setty, AIR 1972 SC 1279 relating to coparcenary property has no appli-
cation to the instant case.

It is urged on behalf of the appellants that to hold that the holder
of an impartible estate has the power of dispossession by a will defeat-
B ing the right of survivorship, would be quite illogical. It may be that
the holder of an impartible estate can defeat the right of survivorship
by leaving a will and such right cannot be said to have been founded on
any logical basis. But, it has to be borne in mind that the whole con-
' .,_
cept of impartibility is a creature of custom including the right of aliena-
tion of the holder of such estate. In matters of custom, it is hardly
possible to justify every incident on some logical basis.
c .---~'-

Much reliance has been placed by the learned Counsel for the
appellants on the decision of the Privy Council in Baijnath Prasad
Singh v. Tej Bali Singh, AIR 1921 PC 62 where it has been ruled that
the fact that a Raj Estate is impartible does not make it a separate or
0 self-acquired property. It is submitted that if the impartible estate is
not a separate or self-acquired property, as held by the Privy Council,
how then a holder of such an estate will have the power of disposition
by a will. There can be no doubt that an impartible estate is not a
separate or self-acquired property of the holder thereof, but it has
been observed by Sir Dinshah Mulla in Shiba Prasad's case (supra)
E that it is clothed with the incidents of self-acquired and separate prop-
erty. One of such incidents is that the owner is entitled to dispose of
the same in whatever manner he likes-either by a transfer during his
life-time or by a will. The contention of the appellants proceeds on the
assumption that the right of survivorship is an immutable right and
cannot be defeated by the disposition bya will.
F
Mr. Mehta, learned Counsel appearing on behalf of the respon-
dents, has invited our attention to a statement of law in Mulla's Hindu
-'\
Law, Fifteenth Edition, Paragraph 229(2) to show that a right of
survivorship of a coparcener can be defeated in certain cases. Para-
graph 229(2) is as follows:-
G
"Para 229(2). The right of a coparcener to take by
survivorship is defeated in the following cases:-
t-
(i) Where the deceased coparcener has sold or

H
mortgaged his interest, in States where such sale
or mortgage is allowed by law;
.
r-
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI (DUTT, J.] 1121

(ii) Where the interest of the deceased coparcener
has been attached in his lifetime in execution of A
a decree against him. A mere decree obtained by
a creditor, not followed up by an attachment in
the lifetime of the debtor, will not defeat the
right of survivorship, unless the judgment-
debtor stood in the relation of father, paternal B
grandfather or great-grandfather to the surviving
coparceners. This rule must be read subject to
the provisions of sections 6 and 30 of the Hindu
Succession Act, 1956, in cases where those sec-
tions are applicable.

(iii) Where the interest of the deceased coparcener C
has vested in the official Assignee or Receiver
on his insolvency. On the annulment of
insolvency the interest which vested in the Offi-
cial Receiver revests under sec. 37 of the Provin-
cial Insolvency Act in the insolvent and if on that o
date he is not alive, it goes to his heirs .under the
law."

• ""! d f Thdus, dthe righ~ of_ a coparcener to take by survivorship can be
e eate un er certam circumstances, as enumerated in Mulla's Hindu
Law in the passage extracted above. In paragraph 587 of Mulla's E
Hindu Law, it is stated that an impartible estate is not held in coparce-
.-.- nary, though it may be joint family property. Indeed, this proposition
has not been disputed by either party in this appeal. When under
certain circumstances the right of a coparcener to take by survivorship
can be defeated, no exception can be taken, if the right of survivorship
• of junior members of an irnpartible estate to succeed to it is defeated F
!"- by the holder thereof by disposition by a will.
The same principle as laid down in Raja Rao's case (supra) has
been reiterated by the Privy Council in a later decision in Protap
Chandra Deo v. Jagadish Chandra Deo, 54 IA 289. In this case it has
been ruled by the Privy Council that the holder of an irnpartible G
Zamindari can alienate it by will, although the family is undivided,
4 unless a family custom precluding him from doing so, is proved.

In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne
Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi Raj, [1964] 2
SCR 403 it has been held by this Court that it must be taken to be H
1122 SUPREME COURT REPORTS [ 1988] I S.C.R.

A settled that a holder of an impartible estate can alienate the estate by \
gift inter vivos, or even by a will, though the family is undivided; the
only limitation on this power would flow from a family custom to the
contrary or from the condition of the tenure which has the same effect.
The same principle of law has been reiterated by this Court in Bhaiya
Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo, [1982] 1 SCR
B 417. In view of the above Privy Council decisions and of the decisions
of this Court, it must be held that the holder of an impartible estate has '7
the power of alienation not only by transfer inter vivos, but also by a
will, even though the disposition by will may altogether defeat the
right of survivorship of the junior members of the family.

The only question that remains to be considered by us relates to _.
C the alternative plea of the appellants that by virtue of a family custom,. ~
the holder of the impartible estate, with which we are concerned, had
no power of alienation either by a transfer inter vivos or by a will. In
support of this contention, our attention has been drawn on behalf of
the appellants to a few correspondence between the original appellant,
D since deceased, and the political agent of the Mohanpur State. Before
considering these correspondence, a few facts are necessary to be
stated. In 1938, the former Ruler, that is, the father of the deceased
appellant, during his life-time gifted certain villages and properties by
way of jiwai (maintenance) to his younger son. In that connection,
some correspondence ensued between the appellant and the political \,./ •
E agent of the State. Before such a gift was made by way of jiWf1i to the
younger son, the original appellant by his letter dated August 1,-J.937
drew the attention of the political agent of the State to the proposed
jiwai worth, according to him, Rs.10,000. It was stated in the said ..... -
letter that despite his pointing out to his father that the proposal of
jiwai was too big in proportion to the annual revenue of the State
f which was about Rs.60,000, his father turned a deaf ear to his earnest
entreaties not to make such ajiwai. In that letter, it was stated by him.""'(
that "big jiwai was proposed contrary to the prevailing practice in all ·
the states and Talukas of this Agency and the past precedent of the
State". In reply to the said letter the political agent, by his letter dated
August 13, 1937, informed the appellant that he would not sanction
G any grant which the former Ruler wished to make to his younger son
without any previous discussion with the appellant. The appellant also
had. written to his father on June 26, 1938, inter alia, stating that
"whatever he wished to give him in excessive in proportion to the t-
income of the State and it is unreasonable and against the practice and
rules prevailing in the State". The political agent, it appears, refused
H to sanction the proposed jiwai. Further, it appears that the appellant
THAKORE VINAYASINHJI v. KUMAR NATWARSINHJI [DUTI, J.] 1123

had given consent to the execution by his father of a deed of gift dated
A
February 9, 1940 in favour of his younger brother for his jiwai. The
political agent granted sanction to the said deed of gift, as it was with
the consent of the appellant.

The appellants have placed much reliance upon the above
documentary evidence in proof of their content!tm that there was a B
family custom prohibiting alienation by the Ruler of_the State. The
correspondence related only to the question of granting jiwai to the
younger son of the former Ruler. It would appear from the
correspondence that the entire attempt of the appellant was against
the quantum of maintenance that was proposed to be granted by the
Ruler to his younger son. It was not the contention of the appellant
that in view of a family custom, the Ruler had no right of alienation, C
but his case was that in view of the annual revenue of the State the
quantum of the jiwai would be out of proportion. It was only on this
ground that he protested against the proposed jiwai. We do not think
that the correspondence referred to above prove any custom of
inalienability of the impartible estate. D

It is submitted on behalf of the appellants that as there was no
instance of alienation till before the impugned deed of gift and the will,
it should be presumed that there was a family custom of inalienability
of the estate. More or less, a similar contention was made before the
Privy Council in Protap Chandra. Deo's case (supra) that the absence E
of any instance of a will purporting to dispose of the estate, was itself
sufficient evidence of the custom of inalienability of the estate. The
said contention was overruled by the Privy Council. There must be
some positive evidence of such a custom. Mere absence of any instance
of alienation will not be any evidence of custom. Moreover, as noticed
already, the correspondence which are being relied upon as the F
evidence of the alleged family custom of inalienability are far from
being such evidence, for the only question that formed the subject-
matter of all this correspondence related to1he propriety of the
quantum ofjiwai. Accordingly, we hold that the appellants have failed
to prove that there was any family custom of inalienability of the
estate. No other point has been urged in this appeal by either party. G

For the reasons aforesaid, the judgment and decree of the High
Court are affirmed and this appeal is dismissed. There will, however,
be no order as to costs in this Court.

S.L. Appeal dismissed. H